Case number: OIC-111828-X6Y6B2
On 21 June 2021, the Irish Fiscal Advisory Council (the Council) responded on Twitter to comments made by the Tánaiste on a recent radio programme about the accuracy of its fiscal forecasts in 2018 and 2019. In a request dated 28 June 2021, the applicant sought access to copies of all records held by the Irish Fiscal Advisory Council referring or relating to remarks made by the Tánaiste about the accuracy of the Council’s reports/forecasts, to cover the period from 19 June 2021 to the date of his request. He provided a link to a newspaper article which reported the Council’s response to the Tánaiste’s comments.
On 23 July 2021, the Council issued a decision refusing the request. Of the seven records that were identified as relevant to the request, five were refused under section 29(1) of the FOI Act (deliberations of FOI bodies), one was refused under section 15(1)(d) (information already in the public domain) and one was refused under section 35(1) (information obtained in confidence). The applicant sought an internal review of that decision on 27 July 2021 following which the Council affirmed its refusal of the request. On 18 August 2021, the applicant sought a review by this Office of the Council’s decision in respect of the five records to which access was refused under section 29(1).
I have now completed my review in accordance with section 22(2) of the FOI Act. In carrying out my review, I have had regard to the submissions made by the applicant and by the Council. I have also examined the records at issue. I have decided to conclude this review by way of a formal, binding decision.
This review is concerned solely with whether the Council was justified in refusing access, under section 29(1) of the FOI Act, to five records coming within the scope of the applicant’s request for records referring or relating to remarks made by the Tánaiste about the accuracy of the Council’s reports/forecasts.
Before I address the substantive issues arising in this case, it is important to note that while I am required to give reasons for my decision under section 22(10) of the FOI Act, I am also required to take reasonable precautions to prevent disclosure of information in an exempt record, under section 25(3). This means that the extent to which I can describe the records and the level of detail I can discuss in my analysis are limited.
It is also important to note that section 22(12)(b) of the Act provides that a decision to refuse a request is presumed not to have been justified unless the public body "shows to the satisfaction of the Commissioner that the decision was justified". Therefore, in this case, the onus is on the Council to satisfy this Office that its decision to refuse access to the records at issue was justified.
Section 29(1) of the FOI Act provides for the discretionary refusal of a request, (a) if the record concerned contains matter relating to the deliberative processes of an FOI body, including opinions, advice, recommendations and the results of consultations considered by the body for the purpose of those processes, and (b) the body considers that the granting of the request would be contrary to the public interest.
These are two independent requirements and the fact that the first is met carries no presumption that the second is also met. Furthermore, the public interest test at section 29(1)(b) is a strong test. Any arguments against release should be supported by the facts of the case and it should be shown how release of the record(s) would be contrary to the public interest, i.e. by identifying a specific harm to the public interest flowing from release.
The first requirement that must be met in order for section 29(1) to apply is that the record must contain matters relating to the ‘deliberative processes’ of an FOI body. An FOI body relying on this exemption should identify both the deliberative processes concerned and any matter in particular records which relates to these processes.
A deliberative process may be described as a thinking process which informs decision making in FOI bodies. It involves the gathering of information from a variety of sources and weighing or considering carefully all of the information and facts obtained, with a view to making a decision or reflecting upon the reasons for or against a particular choice. Thus, it involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The records at issue comprise email threads between various members of the Council and its Secretariat, with some repetition of emails between the records. In its submissions to this Office, the Council said that the records relate to deliberations of the Council, concerning its decision to respond to public comments made by a senior member of Government and the particular wording of that response. It said the deliberations involved the careful consideration of the matter including the weighing up of opinions leading to a collective agreed consensus in respect of both the decision and the response. It said the final wording of the response, published on Twitter on 21 June 2021, is in the public domain.
As I have noted above, I am constrained by the provisions of section 25(3) in terms of the level of detail I can give when describing the records at issue. However, I do not believe that I am in breach of section 25(3) by providing the following description. Records 1 and 2 comprise internal emails relating to the Chairperson’s intention to accept an invitation to appear on a radio programme in response to the Tánaiste’s comments. Records 3 to 5 comprise a number of internal email strings subsequent to the Chairperson’s interview that contain comments on that interview and the Tánaiste’s interview. The emails also discuss a suggested Twitter response.
Having considered the matter and having examined the content of the records, I do not accept that they contain matter relating to a deliberative process as envisaged by section 29. It seems to me that the Council had a particular position in relation to the Tánaiste’s comments and had taken a decision to respond. The emails are more concerned with the precise wording to be used in formulating that response. As the first requirement for section 29(1) to apply has not, in my view, been met, this is sufficient for me to find that section 29(1) does not apply.
I find, therefore, that the Council was not justified in its decision to refuse access, under section 29(1), to the records at issue.
Having carried out a review under section 22(2) of the FOI Act, I annul the Council’s decision to refuse access, under section 29(1) of the FOI Act, to five records coming within the scope of the applicant’s request for records referring or relating to remarks made by the Tánaiste about the accuracy of the Council’s reports/forecasts. I direct the release of the records, subject to the redaction of the specific email addresses of members of the Council which I find to be exempt under section 37(1) of the Act.
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.